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We Reserve the Right to Lie About Our Politicians

2. This case began with a claim—”Steve Driehaus voted to fund abortions”—that certainly could have caused consternation if uttered at a bar or dinner party. Surreally, it ended up before the U.S. Supreme Court. Even worse, there is no question whether Driehaus voted for the bill at issue; the only dispute is whether that bill actually provides federal funding for abortions—which is a question of legal, economic, and even theological interpretation.

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Statements of this kind—call them truthiness, spin, smear, or anything else—are as politically important as their factually pure counterparts. Democracy is based on the principle that the people elect representatives who reflect their beliefs and values, and whom they trust. Beliefs drive democracy—not some truth as adjudged by Platonic guardians—and there is no law that could make it otherwise. Those voters who believed that the Patient Protection and Affordable Care Act provides federal funding for abortion-on-demand (as many do) were told by the Susan B. Anthony List that one candidate had voted in favor of that law. The voters’ beliefs were more important and relevant than the technical truths about the underlying legislation.

The Ohio law extends far beyond disputes over interpretation or implication. Its broad language also criminalizes rhetorical hyperbole and political satire. If, instead of a billboard reading “Driehaus voted for federally funded abortion,” the petitioners had erected a billboard that said “Driehaus is a baby killer” the law would apply with equal effect. All the statute requires is: (1) that the statement be false; (2) that the speaker knew the statement was false, or spoke with reckless disregard for the truth; and (3) that the statement was made with the intent of impacting the outcome of the election. Ohio Rev. Code § 3517.21(B) It is thus apparently illegal in Ohio for an outraged member of the public to call a politician a Nazi or a Communist—or a Communist Nazi, for that matter. That is no exaggeration: the law criminalizes a misstatement made in “campaign materials,” which includes “public speeches.” Id.

And it is irrelevant that the law is limited to cases where the statements were made “knowingly” or with reckless disregard for the truth. It would not be a total defense to any charge under the law to simply state, “I honestly thought this was true.” Instead, some fact-finder (whether the OEC, a judge, or a jury) will have to determine (1) whether the statement was false, and (2) whether the defendant knew it was false, or spoke recklessly.

The law also stifles, chills, and criminalizes political satire. For example, it is a crime in Ohio for a late-night talk-show host to say: “Candidate Smith is a drug-addled maniac who escaped from a mental institution.” Even satirists and speakers that are clearly attempting primarily to entertain their audiences are subject to prosecution if they intend or expect their statements to impact how the audience perceives a candidate. A publication like The Onion—which regularly puts words in political figures’ mouths, or makes up outlandish stories about them—could be violating Ohio law by making people think at the same time it makes them laugh.

3. This law is a paradigmatic example of a content-specific speech restriction that the First Amendment protects against. Why should a false or exaggerated statement about a politician attract government sanction, when that same statement made about another public figure would not?

In Alvarez this Court expressed its concern that upholding the Stolen Valor Act “would endorse government authority to compile a list of subjects about which false statements are punishable.” 132 S. Ct. at 2547. Yet that is precisely what Ohio’s legislature has done. While one subsection serves as a catch-all prohibition on all “false” statements made about a candidate, Ohio Rev. Code § 3517.21(B)(10), the majority of the section is devoted to a specific list of subjects about which false statements are punishable, including: a candidate’s education (2), work history (3), criminal record (4-5), mental health (6), military service (7), and voting record (9).

But wait, there’s more! Refraining from stating (arguable) falsehoods is not enough to stay clear of violating the law. For example, the regulation of statements concerning a politician’s criminal record requires speakers to actively take steps to avoid even the possibility of misinterpretation. If an Ohio political candidate has been indicted a dozen times on corruption and racketeering charges, you cannot lawfully say “Candidate Smith has been repeatedly indicted for corruption” without also saying how those indictments were resolved. Ohio Rev. Code § 3517.21(B)(5). Even if this Court were to reverse itself and hold that false statements are outside the scope of First Amendment protection, there is no question that truthful statements about candidates’ criminal records are “at the core of our electoral process and of the First Amendment freedoms.” Williams v. Rhodes, 393 U.S. 23, 32 (1968).

There is no reason why speech about these topics should be subject to regulation by the state, or why they should only be regulated for the benefit of politicians as opposed to other public figures—like actors, religious leaders, and famous athletes—who are often lied about. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (the First Amendment protects magazine accusing religious leader of a sexual relationship with his mother); Beckham v. Bauer Publ’g Co., 2011 U.S. Dist. LEXIS 32269 (C.D. Cal. Mar. 17, 2011) (a newspaper asserting that famous soccer player had cheated on his wife with a prostitute was protected by both the First Amendment and anti-SLAPP statutes); N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (protecting false statements about police officers’ conduct). Nor are Ohio politicians so particularly thin-skinned that they require protection that politicians in other states do not. See, e.g., Judge Dismisses Libel Suit Against Tenn. Senator, Associated Press, Apr. 26, 2013 (unreported case regarding allegations that a politician’s opponent had been arrested on drug charges).19 “Politics are politics, and it’s a big boys’ and big girls’ game. That’s just the way it is.” Id. (judge’s comments in dismissing the suit).